¶1The case is here principally upon exceptions to the charge. Without undertaking to recapitulate the evidence, or to apply the law to the facts in the case, the court gave several definitions of an assault with intent to commit rape, including the following, to which exceptions are taken:
¶2“An assault with intent to commit rape is an assault by a person intending to gratify his passions on the person of a woman notwithstanding any resistance on her part. ... So an attempt to commit rape is an assault upon a woman with this intent to gratify his passion or to have carnal knowledge, simply expressed as sexual intercourse, at all hazards, and against her will, or without her conscious express permission.” And further: “When a man assaults a woman, and when he does so with intent to have intercourse with her against her will, that is an assault with intent to commit rape.”
¶3The alternative expression in the second instruction, “or without her conscious express permission,” appears twice in the charge. While its repeated use might be considered harmless on the facts of the present record, the question of consent or permission not being mooted, still as the jury was left to make its own application of the charge to the facts in the case we cannot say this was done without prejudice to the defendant, especially in view of the variant definitions given of an assault with intent to commit rape. Without the conscious express permission of the prosecutrix is not perforce the same as “forcibly and against her will,” *384or without her consent which may be express or implied. S. v. Overcash, 226 N.C. 632, 39 S.E. 2d 810; S. v. Jones, 222 N.C. 37, 21 S.E. 2d 812; S. v. Adams, 214 N.C. 501, 199 S.E. 716; S. v. Hewett, 158 N.C. 627, 74 S.E. 356; Hayes v. Lancaster, 200 N.C. 293, 156 S.E. 530.
¶4The crime charged is not an attempt to commit rape, but an assault with intent to commit rape. S. v. Overcash, supra.The assault with the-requisite felonious intent is the gist of the offense. G.S. 14-22.
¶5Another hearing seems necessary. It is so ordered.
¶6New trial.